One year has passed since the appointment of the new government. Undoubtedly, some changes have taken place and further changes are being discussed. However, there is one very important – perhaps the most important – issue, which has been entirely ignored. This fundamental omission concerns the stability of Sri Lanka as a nation; it is something that underpins the achievement of peace and the economic progress of the nation. The elephant in the room that has been ignored is the ability to enforce law in Sri Lanka.

Currently, all these institutions are in extremely dysfunctional states. The citizens of this nation suffer in a state of anarchy. The word anarchy here refers to the failure of the State to enforce the law through its legitimate agencies, such as the police, the corruption control agency, the Attorney General’s Department that is involved in the prosecution of offenses, and the Judiciary that is meant to adjudicate and ensure justice.

This anarchy is, of course, not a problem that has been created by the present government. It is a product of many factors, which includes the failure of the infant State, which came into being on 4 February 1948, to grown up into an adult State. The growth of an infant state into an adult one means that the state is able to develop just laws and is able to enforce those laws through its legitimate organs.

The Sri Lankan State has, however, not yet learnt the basic skills of running a state apparatus. This has been the cause of many problems. These problems include extreme forms of violence, which developed, particularly since 1971 and for many decades after, and serious conflicts relating to the inability to provide equal protection of the law to everyone, including the minorities. Despite the present government not having a hand in these factors, without solving this problem, it cannot help Sri Lanka attain any of the dreams it has spoken about, or help realize some of the dreams people now dream about.

Practically speaking, a person who sets out to pursue his or her dream should have a vehicle to travel in. For a government, this vehicle is the apparatus of the state, i.e. the legitimate organs of the government. If these legitimate organs are broken in the way the engine of a vehicle is broken or the wheels of a vehicle are broken it is not possible to makethe journey without first doing some serious fixing.

This is exactly what has happened to Sri Lanka since independence in 1948. And, it has been aggravated in the last 40 years of conflicts and violence and enormous loss of life and liberty of thousands of people.

The challenge then and now is to make the vehicle capable of moving, capable of carrying the State and the people towards their goals. And, this requires taking all the possible steps to get the essential components of vehicle, i.e. the basic State apparatus, repaired as soon as possible. This, in turn, requires human resources and also financial and other resources.

Therefore, the duty of the government, first and foremost, is to provide these resources, so that the State will once again have a functioning apparatus that the people and the government can work with. To anthropomorphise, it will have the hands, the legs, and the physical organs to work and function.

At the moment, the government has not yet given a thought to this; it has not declared its policies on this fundamental issue, of repairing the essential State institutions to both ensure justice and effectively enforce the law; and there doesn’t seem to be even an attempt being made to consider the same.

That said, an opportunity has arisen where a national discourse is possible on these issues. This opportunity has come as a result of the government announcing that it wants to change the Constitution and that a committee has been appointed to consult people about the reforms they wish the government must embark upon.

Thus, there is a possibility of vigorous discourse, in terms of what the people think are the priorities that should be achieved within Sri Lanka. And, it is to be hoped that all will participate, particularly those who are aware of what constitutions are and what they are supposed to achieve, and that in this participation an opportunity will arise to educate the population for a higher understanding of what the State is all about and how it can and should serve the needs of the people,especially the need for the protection of all persons.

To aid and further this discussion in light of the opportunity that presents,what follows is a brief description of the requirements in a functioning Sri Lankan State apparatus.Currently, there is utter dysfunctionality in the Sri Lankan Police Service, the Prosecutions Department, and the Judiciary, with the term dysfunctional here meaning that these institutions are unable to performtheir most basic duties.

So, what are these basic duties?

The primaryduty for the police begins with the facilitation of quick intake of complaints by victims of crimes and human rights abuse, in a courteous and efficient manner, so that the people have trust and comeforward to make their complaints to the organs of the state.

Following the taking of statements from complainants, the next step is themaintenanceof all the books relating to such complaints, with the highest possible protection, and not to tamper with these documents or allow any kind of distortion.

Investigating into the crimes based on the complaints, according to due process provided for in the Criminal Procedure Code, would be the next basic duty of a functional system. This would require the competence of officers to investigate.

In the modern setting, investigation capacities have been identified, and there are easily accessible opportunities for training to develop capacity for rational and efficient investigating techniques into crimes. Skills, such as the capacity to interview in an intelligent manner, the capacity to gather evidence that could be brought to the attention of the accused so that the accused may be required to explain such evidence, and the ability to effectively use modern technology for investigation, are skills that can be acquired. The skills of using forensic sciences and technology, such as recording and photographic instruments, and many other types of technologies, are constantly being developed and improved around the world, and are available at affordable prices. Competent investigators in the present age must be equipped with such technology and skills.

Next comes the duty of the investigators to provide a faithful record of what they have obtained by way of evidence to the Attorney General’s Department, without making any distortions. And, then it is for the Attorney General to pursue the record, identify if a crime has been committed, and then immediately prepare indictments if such a crime has, in fact, been discovered. This is something that needs to be done carefully, but at the same time efficiently, without the wastage of time.

And, finally we have the turn of the Courts, which have many duties. The first basic duty of the Courts in a functional system is to receive all parties that come to the Court – the police, the prosecutors, as well as the people – courteously and with due respect. Thereafter, abasic duty of the Courts is to conduct the proceedings in the manner prescribed by the law and not to allow any type of delays in this matter.

And, it is this last duty that is the greatest challenge to the maintaining of an efficient State mechanism in Sri Lanka. The delays in adjudication that are taking place in our legal system are a source of many forms of corruption and a source of many forms of abuse of power.

When a result of crime – whether a crime was committed or not – can be known only some ten or fourteen years later, at a time when the society has lost interest in this crimeand its conviction, then the system is a dysfunctional one.

To have a social impact, with a deterrent effect, there needs to be reasonably quick disposal of cases so that the people remember the crime, and they remember the punishment. And, thereby, the society can learn a lesson: to avoid certain kinds of conduct in the future.The failure of Courts by way of delays is the greatest failure, and it is something for which all Sri Lankan governments are responsible.

It is not only the Judiciary that is responsible for these failures; it is the government that must provide resources and all the facilities and also proper persons who are selected only on the basis of competence and integrity to run judicial institutions. On all these matters there have been tremendous backward steps since the promulgation of the 1972 and 1978 constitutions.

If the legal process takes place and takes place quickly, it does not merely solve individual crimes or individual abuse of violations of rights, it creates a state apparatus that the people will see as functioning efficiently and thereby it will bring about order.

It is the loss of order that is considered as anarchy. What prevails in Sri Lanka, as a result of dysfunctional basic institutions, is disorder, and disorder means anarchy.The responsibility for the prevailing anarchy must be taken by whoever is running the government at the particular time. So, despite not being behind the factors that have led Sri Lanka to this state of anarchy, it is, therefore, the new government that bears the responsibility for addressing the disorder that has spread in Sri Lanka, and it is this government that must quickly redress the problem by bringing in the necessary changes in terms of the repair work and the resources for this repair work.

It is these budgeted resources in Sri Lanka that are mostly lacking, and not as much the law. And, it is the duty of the government to provide these resources. If not, the government will fail in its primary duty, and keep the State of Sri Lanka as an infant State and thereby one incapable of serving the needs of Sri Lanka.

President Mahinda Rajapsaksa has told all constituent Parties of the United People’s Freedom Alliance (UPFA) to adhere to the government policy on the Geneva issue.

The President made this announcement at the post Provincial Council election meeting of the government Parliamentary Group held at Temple Trees, Mahajana Eksath Peramuna Leader, Chief Government Whip and Water Supply and Drainage Minister Dinesh Gunawardena told Ceylon Today.
The President stressed on the need for all the political Parties of the government to speak in one voice on government policy to avoid distortions whenever questions and…

…queries are raised locally and internationally and especially when it comes to making statements to the media, both locally and internationally, Gunawardena told this newspaper yesterday. The President stressed on the need for all the political parties of the government to speak in one voice on government policy to avoid distortions whenever questions and queries are raised locally and internationally and especially when it comes to making statements to the media, both locally and internationally, Gunawardena told this newspaper yesterday.
He also said that External Affairs Minister Prof. G.L. Peiris had explained to the Government Parliamentary Group, in great detail, what the policy was before and after the Geneva Resolution and all members were expected to stick to that.

A Colombo datelined Agence Francais Presse ( AFP) report on 28 March quoted President Rajapaksa as having said (Inter- alia) . “This resolution only hurts our reconciliation efforts. It does not help. But I am not discouraged. We will continue with the reconciliation process I have started.”
President Rajapaksa has also told AFP that Sri Lanka’s home-grown process had made sweeping recommendations to ensure ethnic unity and the government was implementing them.

“We need time to implement the recommendations of the LLRC,” the President said. “I want to repeat again that we are going ahead with this process,” he added.
The Minister also said that the meeting was held to conduct a post-mortem on the election results, but had taken a totally different turn with the President turning and pointing out sharply that all government members should adhere to the government policy in one voice.
http://www.ceylontoday.lk/51-61102-news-detail-adhere-to-govt-policy-on-geneva-issue.html

This is in response to the statement made by the External Affairs Minister of Sri Lanka, Professor G. L. Peiris at the high level segment of the 25th session of the Human Rights Council on March 5, 2014 at Geneva.
Accountability and reconciliation are fundamental to the restoration of permanent peace with dignity, equality and justice amongst the peoples of Sri Lanka.

It is necessary in this context to set the record correct in respect of some issues referred to in the above statement. A final acceptable political situation is imperative and fundamental to reconciliation. The minister in his statement refers to the Parliamentary Select Committee (PSC) and states that the persistent refusal of the TNA to participate in the process is a hindrance to any settlement. It is necessary that the truth be stated in regard to this matter.
Bilateral talks between the Government of Sri Lanka (GoSL) and the TNA in regard to the political solution commenced in January 2011, when the TNA outlined the contours of a political solution within the framework of a united, undivided Sri Lanka. A comprehensive written draft of these proposals was given to the GoSL delegation in February and March 2011.

The GoSL delegation undertook to respond in writing to these proposals, but over a period of seven meetings and five months did not do so. The GoSL has not responded up to date. In the circumstances the TNA informed the GoSL on 4th August 2011 that the date for the next round of talks could be fixed after the GoSL’s written response was available.
At the invitation of President Mahinda Rajapaksa, the TNA Leader met with the President on 2nd September 2011. It was agreed at the said meeting that all the formulations and documents that had emerged during various processes, after the enactment of the 13th Amendment would be brought into the negotiation process; that the bilateral talks would resume; that the consensus arrived at between the GoSL and the TNA at the bilateral talks would be taken before the PSC, which the government proposed to set up.

The bilateral talks resumed on 16th September 2011, the agreement arrived at between the President and the TNA leader as above stated was recorded in the minutes of that meeting.

The talks continued without much progress. Talks were fixed for 17th, 18th and 19th January 2012, The GoSL delegation did not attend the talks on any of the said three dates. These were the circumstances in which the talks could not be continued.
Efforts were made to resume the bilateral talks in January 2012 and in May 2012. These are matters of record. The GoSL’s failure to respond as agreed hindered the recommencement of talks.

Meanwhile, leaders of Alliance Partners of the GoSL of Cabinet rank and also appointed by the government to the Parliamentary Select Committee made public statements that the 13th Amendment to the Constitution must be repealed, that powers contained therein over Land and Police should be removed, that other important provisions should be removed or altered, and were insisting that the TNA should attend the PSC.

The Select Committee was to consist of 31 members, 19 from the GoSL and 12 from the opposition of whom the TNA would perhaps have 3 or 4. In this background there was no possibility of evolving a reasonable and acceptable political solution unless there was a reasonable consensus between the main party in government – the Sri Lanka Freedom Party (SLFP) and the TNA. This is the background in which the TNA could not participate in the PSC. The PSC presently comprises only GoSL representatives. The TNA merely insisted that the agreement arrived at between the President and the Leader of the TNA be fulfilled.

It must also be stated that though the Lessons Learnt and Reconciliation Commission has called upon the government to come up with its own proposals for a political solution, the government has up to date failed to do so, raising strong misgivings about the GoSL’s sincere commitment to an acceptable political solution.

In the light of the above, the minister’s explanation in regard to the non evolution of an acceptable political solution is tendentious and not in accord with the true position.

Accountability and the truth being ascertained are fundamental to reconciliation. The murder of five students on the beachfront at Trincomalee in January 2006 and 17 Aid Workers of the ACF at Muttur in August 2006 are amongst the most egregious of the grave violations committed. The minister in the course of his statement, refers to various steps that are being taken in regard to those two crimes more than seven years later. It is necessary to refer to matters that happened earlier. A Commission appointed by the President was entrusted with the responsibility of investigating these two among several other grave violations.

An International Independent Group of Eminent Persons (IIGEP) was appointed to oversee the working of the Commission and to ensure that the investigations were carried out in keeping with international norms and standards. Amongst the early steps proposed by the IIGEP was that evidence before the Commission on behalf of the victims in these two cases should not be led by the Attorney General or his representative, as he was also engaged in defending the government and its forces on human rights violations before the Human Rights Council and other fora; that consequently there was a clear conflict of interest; and that there should be a Witness and Victim Protection Law to ensure that witnesses were given due protection.

With the government’s fullest support the proposal relating to conflict of interest was disregarded, and the Attorney General or his representative continued to lead evidence; a Victims and Witnesses Protection Bill was brought to Parliament, the second reading debate was taken up, but the Bill was thereafter abandoned. Consequently, witnesses who were being intimidated fled the country. The IIGEP had helped to record the evidence of witnesses who had fled abroad through tele-conferencing. However, persons defending the accused made representations to the government against the recording of evidence through tele-conferencing. Thereafter, as a result of the government’s intervention, the recording of evidence through tele-conferencing was terminated.

The IIGEP withdrew its role in Sri Lanka and publicly stated that the GoSL did not have the political will or commitment to investigate grave violations of human rights in keeping with international norms and standards.
In regard to the killing of a large number of Tamil civilians in the final stages of the war, the ascertainment of the truth would largely depend on how many of the persons inside the conflict zone during the final stages have been accounted for. This cannot be ascertained through a census done throughout the whole country. The GoSL claimed that there were around 60,000 persons in the conflict zone. The reality is believed to be that there were upwards of 350,000 persons in the conflict zone. Around 290,000 persons came out. The truth needs to be ascertained by the issue being addressed directly instead of attempting to obfuscate the issue.

Land issues are of critical importance and are again fundamental to reconciliation. The TNA is firmly of the view that the GoSL with the support of the Armed Forces is aggressively engaged in a programme to alter the demographic composition of the Northern and Eastern provinces, predominantly Tamil-speakingand to changing the linguistic and cultural identity of these areas. These matters have been raised in Parliament and with the government on numerous occasions but the programme continues. Substantial extents of land held by the Army during the war continue to be held by the Army; it is correct that some lands have been released. However, nearly 100,000 people are still languishing in camps, welfare centres and with host families due to their lands not being released.

In Valikamam in the North and in Sampur in the East, contrary to commitments made by the government to the Supreme Court, and in Parliament, substantial extents of land are still held by the Army. New lands have been occupied by the Army after the end of the war; and displaced Tamil civilians are unable to return to lands for residence or livelihood, as the lands are occupied by the members of the Armed Forces or the majority community. Lands are sought to be taken over for the propagation of the religion of the majority, even in areas where persons of the majority community do not reside. It is absolutely essential that these land issues are resolved in a just and equitable manner. The failure to resolve these issues is bound to lead to further ill will and acrimony.

Attacks on places of religious worship and cultural importance of minority peoples have been a continuing phenomenon and the offenders act with impunity and in the belief that the arm of the law will never reach them. Inaction on the part of the government and law enforcement authorities has given them this confidence.

The involvement of Armed Forces in civilian activities is best illustrated by the reports of both the international and domestic monitors in regard to the conduct of the Armed Forces during the holding of the Northern Provincial Council Elections. The overweening presence of the Armed Forces is a source of immense discomfort and harassment to the civilian population. A proclamation under Section 12 of the Public Security Ordinance continues to be made each month by the President calling out the Armed Forces to maintain law and order in every single district of the country.